Professional Documents
Culture Documents
Discovery Powerpoint Fall 2020
Discovery Powerpoint Fall 2020
-Edson R. Sunderland
Discovery in Federal Civil Cases
Summary Post-
Pleading Discovery Judgment Trial Trial and
Appeal
1938 Revolution Founded on Three Pillars
Summary Judgment
Broad Discovery
Liberal Pleading
Discovery in Federal Civil Cases
Discovery in U.S. civil cases allows litigants to gain access to all relevant
evidence before trial. This…
3. Promotes merits
resolutions over
technical dismissals
Discovery in Federal Civil Cases
Scope of Permissible
Discovery
Discovery in Federal Civil Cases
Privileges protect
confidential
communications
Scope of Permissible Discovery
Mandatory Disclosures
Mandatory Disclosures
3. A Computation of damages
Part III:
Discovery Tools
Presuit Discovery (Rule 27)
_______[name]________________, )
)
Petitioner, )
) NO. ______________
_______name]_________________, )
)
Respondent. )
INTERROGATORIES
Responses are due within 30 days of the date you were served with these
documents.
1. If you have ever been a plaintiff or defendant in any lawsuit other than
this action, please state the title, docket number, and jurisdiction in which
each lawsuit was filed, as well as the date each lawsuit was filed.
2. Identify each person, excluding your attorneys, to whom you have made
any statement or with whom you have had any discussion regarding any
aspect of this action, state the date and describe the substance of the
statement or discussion
3. Provide the names of any parties who you contend are necessary parties
to this action, but who have not been named.
Requests for Production (Rule 34)
1. Admit that you were driving a 2000 Toyota with Maryland motor
vehicle tags on the date of the car crash.
FRCP 26(b)(3)
and
Hickman v. Taylor
FRCP 26(b)(3)
prepared in anticipation
of litigation or for trial
Work product
covers things
by or for a party or its
representative
For FRCP 26(b)(3) and Hickman:
However, there
is no exception
for core work
product under
Rule
26(b)(3)(C)
Work Product: Putting it all together
Step 2: Was the discovery being sought prepared in anticipation of litigation or for
trial and was it prepared by or for a party or its representative?
Step 3: Is the discovery being sought concern core work product (i.e., the mental
impressions, conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation?
Step 4: Assuming we’re dealing with ordinary work product, is there substantial
need for the materials; and is the party seeking the discovery not able, without
hardship, to obtain their substantial equivalent by other means?
Presentation Outline
Electronically Stored
Information (ESI)
ESI – Defining the Problem
1. When is litigation
“reasonably anticipated”?
Ownership or physical
possession not required
Rule 26(b)(2)(B)
“A party need not provide discovery of
electronically stored information from sources
that the party identifies as not reasonably
accessible because of undue burden or cost”
“Reasonably Accessible”
Rule 26(b)(2)(B)
However, even as to inaccessible records:
“the court may nonetheless order discovery
from such sources if the requesting party
shows good cause”
Rule 37(e)
(the rule as of Dec 2015-)
“(2) only upon finding that the party acted with the
intent to deprive another party of the information’s
use in the litigation may…”
New Rule 37(e)
Assessing Critiques of
American Discovery
Critics of U.S. Discovery say:
“On a scale of 1 to 7, with 1 being too little, 4 being the right amount, and 7 being too
much, how much information did the disclosure and discovery generated by the
parties in the named case yield?”
FJC 2009 Survey
“On a scale of 1 to 7, with 1 being too little, 4 being the right amount, and 7 being too
much, how did the costs of discovery to your side in the named case compare to your
client’s stakes?”
FJC 2009 Survey
“What effect on settlement did the costs of discovery...have in the named case?”
FJC 2009 Survey
“Attorneys can cooperate in discovery while still being zealous advocates for their
clients
FJC 2009 Survey